论文部分内容阅读
在数个企业生产的同一缺陷产品致害的大规模侵权案件中,若因客观原因致使生产者不能被查明,应根据市场份额责任理论,按各企业生产的缺陷产品占市场之份额将损害结果归咎于各个主体。民法的目的和刑法的目的在保护法益这一根本点上具有一致性,将脱胎于民事判决的市场份额责任理论运用到刑法上来不存在根基上的障碍。市场份额责任是刑法上因果关系中的一种因果类型,与疫学的因果关系的本质无异,它是人文科学与经验法则的结合,与自然科学法则亦不矛盾。市场份额责任理论不需要风险刑法学说的支持,坚守住了旨在保障国民自由的责任主义的底线。此理论在其能够适用的案件范围内一定程度上解决了具体因果关系不明情况下的同时实行人的归责难题,但其适用需受到严格限制。该理论的应用亦可创造性地对犯罪主体判处罚金刑,最大限度地发挥罚金刑的报应和预防功能。
In the case of large-scale infringement caused by the same defective product produced by several enterprises, if the producer can not be ascertained due to objective reasons, the market share of the defective products produced by each enterprise should be under the market share liability theory according to the theory of market share liability. The result is attributed to each subject. The purpose of the civil law and the purpose of the criminal law in the protection of law and interests of the fundamental point of consistency, the theory of market share born out of civil judgments applied to the criminal law does not exist on the foundation of the obstacles. The responsibility of market share is a causal type in the causal relationship in criminal law. It is no different from the causal relationship between epidemic diseases. It is a combination of humanities and the rules of experience, and it is not contradictory with the laws of natural science. The theory of market share liability does not need the support of the theory of risk criminal law, and it sticks to the bottom line of the responsibility doctrine aimed at safeguarding national freedom. To a certain extent, this theory solves the problem of imputation of people in the context of unknown causality to some extent within the range of applicable cases, but its application is subject to strict restrictions. The application of this theory can also creatively impose a fine on criminal subjects and maximize the retribution and prevention function of fine punishment.